Archive for the category “prosecution”

Recently there have been some disturbing stories in the news. After last year with the incidents with the Occupy student protesters at Berkeley and Davis, you’d think that colleges would have learned that bad reactions to student frustration elicits a stronger reaction than the protests themselves.

Nope.

In a time where some educators and former student activists lament the apathy of this generation in America, some schools are using their campus judicial system to punish students who are protesting actions by the Boards or what they see as insufficient action by administration. Using the system in that way is dangerous because it stifles the voice of the leaders of the new generation, sets a precedent that will silence student voices for years to come, and completely undermines the credibility of the judicial system itself. To be fair, the student protesters may have technically violated the rules regarding protests or trespass or embarrassed the school at key times, but the solution to these violations is creating a “teachable moment” and not creating a disciplinary record that may keep them out of graduate schools, deny them employment, prohibit them from getting government clearance, and keep a record in the judicial office for years after they graduate. While the students’ choice of methods may be unfortunate, using the campus judicial system against them violates the entire that system, not to mention completely invalidates the school’s attempt to develop leaders.

A good campus judicial system is supposed to be an educational response to violations of the values and expectations of the campus community. Since that is a fairly nebulous concept, rules are put in place that are meant to reflect those values and/or ensure the health

and safety of the campus community as a whole. A good system also allows administrative discretion to make sure that people aren’t using the nuclear option against students when diplomacy would work. It is that aspect that has failed here, and I cannot believe that the failure is accidental.

One of the most amazing experiences you can have as an educator is watching as a student realizes that he or she can make a difference. Schools almost universally establish co-curricular goals of giving students the tools they need to become leaders, critical thinkers, and problem solvers. Schools have offices dedicated to leadership development, entrepreneurship, and service learning to help train those students passionate about making change in their local or global community, and to inspire others to become so. Unfortunately, to today’s generation, the idea of a metaphorical “suggestion box” just isn’t good enough. In a world where you can use social media to directly connect with Donald Trump, Lady Gaga, President Obama, and Speaker Boehner, having to walk up the chain of command is seen as slow, unnecessarily complex, inefficient, and simply not good enough. This is especially true if the issue involves social justice, ethics, or what is viewed as recurring or imminent harm. On the one hand, it is important that passionate students be taught effective ways to voice their displeasure, engage the help of the right people, and do it in a way that allows change to occur. Administrators might argue that the students are being punished because they went outside of the accepted methods of protest and created a disruption that was unacceptable, and perhaps did so without trying to accomplish things the “right”way first. With all due respect, that is a terrible reason to actually punish students.

The simple fact is that schools are, in many ways, a business. Their “widget” is education and it is an amazingly valuable widget that I love, but it is a widget nonetheless. There are some schools that do a great job walking the line between corporate thinking and the ivory tower ideas of the past, but many of them do not have that luxury. Some schools have placed people in upper administration that are business people first and educators a distant second, if at all. So the administrative hierarchy is filled with more red tape and obstacles at a time when society is tearing those down. This has made it very difficult for students to find consistency and transparency, and has actually increased the frustration many of them feel. While a school should want even the most frustrated students to voice their concerns the “right” way, if students do not feel that those ways work, there has to be an awareness by those schools that the student perception is at least partially their fault.

If students identify what they see is a problem and they try to work to resolve that problem with little or no success, what do we want them to do? What would a leader do? Once that group has spoken to the right people and been told that “their concerns are noted and appreciated” but the looming deadline to affect change approaches, how are they supposed to ensure that they are not simply put off until the subject of their concern has already taken place. Cooper Union, for example, will be charging tuition for the first time ever and that was a done deal before the first student or alumnae could raise her voice.

In a time where most good people object quietly to the injustices they feel, we have the opportunity to raise a group of change agents willing to take vocal stands against those same injustices. We may not agree with them, we may not like their positions, and we may not approve of their methods, but we sure as hell should not actively silence them. Silencing discontent does not eliminate the problem; it exacerbates it. The global community is full of those examples—Turkey, Egypt, Syria, China, etc. When you stifle one voice aggressively those people who were simply content to watch start choosing sides, and the last thing an administration wants are students that lose faith in their ability to advocate for them. It’s simple—if the administration does not have the students’ back, the students will cut administration out of their process.

Now, I am in no way saying that any student action should be accepted without consequence. There are clearly things that a dissatisfied student could do that not only should be addressed swiftly and severely, but must be. However, as long as the student actions do not impact the ability of other students to pursue their own interests using the campus judicial system is the wrong response. Yes, in other countries or in the streets of this country a protester can expect to face some sort of legal consequence, but college campuses should be different. In the long run, disciplinary probation will not be a big deal to most people, but students do not know that. Most students believe that being on probation will hurt them down the road, and every administrator knows that belief exists. If the students punished in these cases don’t care about being put on probation, you can bet the administration knows that other students will. Punishing these students is more about making sure that any future student who gets frustrated to the point of taking action thinks twice. Administrators know that many of them will simply suffer in silence thinking that the risk isn’t worth it, and that they will therefore not have to deal with these types of situations in the future.

If colleges do not encourage students to vocalize dissent, there will literally be no place left that does.

What do you think? What should students do if they feel that they are being ignored or simply being paid lip service? What should colleges do to reinforce the idea that there are “right” ways to do things?

I should also say that if you are in trouble for protesting at your college, we will help you navigate your judicial process for 30% off our normal prices. Keep fighting the good fight.

One of the most confusing aspects of the college judicial/disciplinary system is how a college can adjudicate something that is a “crime.” If you’ve ever wondered how a college student can be “convicted” of assault and yet not be in jail, you are not alone. Colleges use terms for policies that are the same (or really close) as the state definition for crimes, and in some instances have the exact same language. That’s inherently confusing and I have known Deans and attorneys that can’t grasp that something can be a violation of a “crime,” and yet not mean that a student broke the law. Let’s see if I can clear it up.

The venue in which a case is heard and the standard of proof applied are different determine what a person is responsible for. With apologies to my law school professors for the simplification of my explanation, think of the world as broken down into 3 “courts.”

Criminal court—This is what most people think of when they think “crime.” In this court there are strict rules of evidence, extensive civil liberties, and the “state” brings the case against an individual. The prosecution (the “district attorney” or “DA”) must prove beyond a reasonable doubt that the accused (“defendant”) committed the crime with the necessary intent. This is an incredibly high standard of proof because if the DA is successful the defendant will be denied his or her liberty and will face incarceration. Think of this standard as >95% likely that the defendant did it.

Civil Court—If you sue someone for wronging you, you do it in civil court. In civil court the injured party/victim (“the plaintiff”) sues the accused person (“the defendant”) looking for a remedy for what he or she believes was damage done to him/her. The basis for this suit has to be among a group of torts (i.e. responsibilities or obligations that the defendant had to the plaintiff that were not met) and must show that the defendant did or did not do something, that action “injured” to the plaintiff, and that injury resulted in damages. The standard here is “clear and convincing” or somewhere around 80%. Once again, there are strict rules of evidence, and an attorney who speaks on their behalf almost always represents both parties. Civil courts can hear torts based on crimes with one of the most known examples being the OJ Simpson case where he was acquitted for a murder charge (i.e. he “didn’t commit” murder) but liable for a wrongful death tort (i.e. his actions lead to the death of two people.)

Campus judicial hearing—While schools all have a slightly different system, there are similarities that cut across them all. In general, a student (“the respondent”) is accused of violating a school policy by someone (e.g. another student, staff, or professor) called the complainant. All the complainant has to show is that there was a “preponderance of evidence” that the respondent violate a school policy. In other words, the complainant must show that it was more likely than not or >50% that a policy was violated. There are essentially no rules of evidence and in most cases the school’s only due process obligation is to have a system that is inherently fair and to do what they say they are going to do. So if $20,000 goes missing from a student club account, it is possible that the person accused of stealing it will be found not guilty in criminal court, not liable in civil court, but be responsible in a judicial case.

The “wrong” a person does can fall into one or more venues, and here is where it gets really confusing. When a student does something wrong, it is possible that that action can be against policy, a tort, and/or a crime. Without any exception I can think of, anything that would rise to the level of a prosecutable crime will also be against school policy. However, many of the things that are violations of school policy will not be prosecutable crimes even if the violation has the same name and similar elements of a crime.

A good, and fairly non-controversial, example of this is hazing. Almost every school has a “hazing” policy and many of them simply quote state law as their policy. This would imply that if you violate the hazing policy on campus that you’re violating state law, but that isn’t the case. Let’s say a fraternity has their new members (i.e. pledges) go on a scavenger hunt and while that hunt has some embarrassing elements to it, there is no theft, vandalism, forced consumption of alcohol, or injury to anyone. In fact, each pledge says it was the most fun they ever had and ask to do a similar thing again in the future. If you read the hazing law in most jurisdictions this would constitute hazing, but no DA is going to prosecute anyone for it. On campus, however, that fraternity would likely have a hearing and be found responsible for hazing. They might be sanctioned with probation or even a brief suspension for violating that policy. That would mean that they violated the school’s policy on hazing that has the same as the language of the state law, but it does not mean that they violated the law. They were not heard in criminal court, and there probably would not have been a guilty finding even if they were.

Does this make sense? On Friday, I will talk about how this works with the most controversial issue of all, campus sexual assault, and why a student who commits sexual assault on campus did not necessarily commit a crime and why a college campus may be the best place to hear these cases.

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